HKSAR v. WONG CHI KING

CACC 252/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 252 OF 2006

(ON APPEAL FROM HCCC NO. 301 of 2005)

____________________

____________________

J U D G M E N T

1.  On 18 December 2007, we dismissed this appeal which concerned the applicant’s conviction on one count of rape, one count of assault occasioning actual bodily harm, and one count of indecent assault.

2.  By notice of motion, considerably out of time, the applicant seeks a certificate pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 for the following suggested points of law of great and general importance:

IN a situation where a key/main witness gives evidence under an immunity from prosecution for an offence and under oath concedes that she:-

i    asked the Police what effect she had to face if she withdrew her complaint; and

ii   was told by the police that she might be liable for prosecution for the offence of making a false report; and

iii   had no alternative but to press on with her allegations;

IS it sufficient and/or adequate for a Judge to sum up the above situation by urging the jury:-

“to consider these last concessions with care and also against the fact that she gave evidence in this trial under immunity”

OR did the material irregularity of the improper actions of the Police in combination with an offer of immunity require a specific warning,

AND is it necessary law for such a warning to contain reasons and clarification as to why special care should be taken when considering the specific matters such as:-

(a)    explain to the Jury the purpose of granting immunity is to encourage the witness to give full and frank testimony without fear of being prosecuted.  The threat of prosecuting the same witness by a person in authority (the Police) is not only totally improper but completely neutralises the offer of immunity and puts pressure on her to give evidence consistent with what she stated in her report or statement irrespective of whether it is true or not;

(b)   explaining to the jury that the witness might be maintaining her stance against the accused because she was under pressure to avoid being prosecuted for the offence of making a false report;

(c)    directing the jury to consider:

(i)  why the witness asked the police “what effects she had to face if she withdrew her complaint”, and

(ii)  does her admission that she had no alternative but to press on with her allegations show reluctance on her part to give evidence; and

(d)   asking the Jury to consider that if she was reluctant, whether it revealed a witness seeking to withdraw a false story or a witness not wishing to undergo the embarrassment of giving evidence revealing intimate details of her life.

3.  We do not consider that any point of great and general importance is raised.  Accordingly, we shall not grant a Certificate. 

4.  The application is dismissed.  There will be no order as to costs.